MUHAMMAD IQBAL MAHAR, J.---By means of instant Jail appeal, appellant Roshan Ali has assailed the judgment dated 15.11.201 1, passed by learned 1st Additional Sessions Judge Khairpur , in Sessions Case No. 328 of 2002, arising out of Crime No.53/2002 registered at Police Station Sobho Dero, whereby he was convicted for offence under section 302(b), P.P.C. and sentenced to death for committing murder of deceased Mst. Karman and Mst. Najma.
2. The facts in nut sell are that appellant-accused Roshan Ali is brother-in-law (Salo) of complainant Hussain Bux.
Two three times before the incident, he had come to the complainant and had demanded Rs.30,000/40,000/- as a loan but the complainant had refused, whereupon he had become annoyed and had challenged that he would teach a lesson to the complainant. On 31.08.2002 at 11.00 am complainant, his mother Mst. Karman were present in the house while his daughter Mst. Najm a was working in the courtyard of the house. In the meantime appellant- accused Roshan Ali Kori having sharp edged wooden piece, entered the house of complainant and caused sharp edged side wooden piece blows to Mst. Najma, which hit her. She raised cries and fell down. The complainant and his mother Mst. Karman raised cries and tried to intervene but the appellant-accused caused wooden piece blows to Mst. Karman on her head and other parts of the body . On the cries, PWs Hamid Ali and Wali Mohammad came there, who saw Mst. Najma lying on the ground and the appellant-accused while causing injuries to Mst. Karman.
The complainant party tried to apprehend the appellant-accused but he went away towards northern side. The PWs and others followed the appellant-accused while the complainant went to police picket Razidero and narrated the incident to ASI, Ghulam Abbas Shar and asked him to help, who along with his subordinate staff proceeded in help and apprehended the appellant-accused along with PWs in the bazaar and recove red sharp edged wooden piece.
ASI prepared mashirnama of arrest and recovery in presence of Khair Muhammad Memon and Mushtaque.
Thereafter , the police party along with appellant-accused came at the place of wardat. The ASI found Mst. Najma and Mst. Karman both were bleeding and were dead. The police immediately took the appellant-accused to PS, Sobho Dero due to tense situation and registered the FIR.
3. After usual investigation, the police submitted challan before the Court of law having jurisdiction. The learned trial Court completed legal formalities and framed the charge against the appellant, accused at Ex.2, to which he pleaded not guilty and claimed trial, such plea was obtained at Ex.3.
4. To substantiate the charge, prosecutio n examined PW-1 complainant Hussain Bux Kori at Ex.5, who produced FIR and receipt of the dead bodies at Exs. 6 and 7, PW-2 Hamid Ali Kori at Ex.8, who produced his 164, Cr.P.C. statement and photostat copy of his CNIC at Exs.9 and 10, PW-3 Wali Mohammad Kori at Ex.11, who produced his 164, Cr.P.C. statement and photostat copy of his CNIC at Exs.12 and 13, PW-4 Tapedar Nawaz Ali Ghumro at Ex.14, who produced sketch of place of wardat at Ex.15, PW-5 mashir Khair Mohammad Memon at Ex.16, who produced mashirnama of arrest of appella nt-accused and recovery of blood staine d wooden piece, mashirnama of place of wardat, danishnamas, mashirnama of recovery of blood stained clothes of accused and deceased ladies at Exs. 17 to 22, PW-6 PC, Riaz Hussain at Ex.23, PW-7 SIP, Ghulam Abbas Shar at Ex.24, PW-8 Civil Judge and J.M. Mr. Mian Aijaz Rabbani at Ex.25, who produced letter for recording of 164, Cr.P.C. statements at Ex.26, PW-9 W.M.O., Dr. Dilshad Shaikh at Ex.27, she produced letters, post mortem reports of deceased Mst. Karman and Mst.
Najma at Exs. 27 to 31, PW-10 S.I.P. Sher Muhammad Sangri at Ex.32, who produ ced letter issued to Mukhtiarkar Gambat and chemical examiner's reports at Exs.33 to 39 respectively . Thereafter , learned DDA closed the prosecution side vide statement at Ex.40.
5. After completion of prosecution evide nce, the appellant/accused was examined under Section 342, Cr.P.C, wherein he denied the prosecution case, claimed his innocence and further stated that the complainant had obtained loan from him and on demand he registered this false case, however neither he examined himself on oath nor led evidence in his defense.
6. The learned trial Court after hearing the Counsel for the appellant, learned ADPP for the State and on appraisal of the evidence, passed impugned judgment, which has been assailed through instant jail appeal.
7. Learned Counsel for the appellant/acc used contended that the appellant/accused is innocent and has falsely been involved in this case by the complai nant; that the impugned judgment passed by learned trial Court is against the law and facts of the case; that the prosecution evidence is deeply interested and consists of three brothers and one relative and no independent person of the locality has been examined; that certain serious contradictions which were brought to the notice of the trial Court, have not been considered by the trial Court; that the medical evidence is inconsistent with the ocular evidence, which belies the version of eye-witnesses. Lastly , he contended that the prosecution has failed to prove the guilt of the appellant beyond shadow of doubt, therefore, he is entitled for acquittal. Learned counsel for the appellant relied upon case of Mureed Hussain v. The State through Prosecutor General Sindh (2014 SCMR 1689 ). The learned counsel for the appellant/accused further contended that if the Court is not persuaded with his arguments regarding the acquittal of the appellant/accused, it is a fit case for reduction of death sentence to imprisonment for life as the prosecution has failed to prove the motive.
8. Conversely , learned Addl. P.G., appear ing for the State, while controverting the contentions of learned Counsel for the appellant/ accused submitted that this is a heinous offence in which two innocent ladies have lost their lives at the hands of the appellant/accused and all the witnesses have supported the prosecution case. The ocular evidence is corroborated by medical evidence as well as by circumstantial evidence. The appellant/accused was arrested by the Police and PWs immediately after the incident and blood stained wooden piece and blood stained clothes of the appellant/accused were recovered by the Police. Mashir Khair Muhammad is independent person and he has fully supported the arrest of the appellant/accused, recovery of wooden piece from his possession and blood stained clothes of appellant/accused and deceased ladies which were sent to the office of chemical examiner and received positive report. SIP Ghulam Abbas Shar and Investigating Officer Sher Muhammad Sangri have also supported the case. He lastly concluded that the prosecution has proved its case against the appellant/accused beyond reasonable doubt therefore, he is not entitled for acquittal or reduction of his sentence. He relied upon case of State v. Muhammad Yasin Memon alias Yaseen Memon (2011 SCMR 401), Ranjha v. The State (2007 SCMR 455) and Ashiq Hussain v . The State (2017 SCMR 188 ).
9. We have carefully examined the respective contentions as agitated on behalf of the appellant/accused and for the State in the light of relevant provisions of law and record of the case. The occurrence had taken place in broad daylight inside the house of complainant and the parties were known to each other prior to the incident, hence there is no question of mistaken identity . The incident was reported at police station within 45 minutes wherein the appellant/accused was nominated as an accused, with specific role of committing the murder of two innocent ladies by causing sharp side of wooden piece blows. The appellant was arrested after ten minutes of the occurrence by PWs and ASI Ghulam Abbas Shar and blood stained wooden piece and clothes of accused were recovered.
10. The prosecution produced ten witnesses to prove the case against the appellant/accused including three eye- witnesses, i.e. complainant, PW Hamid Ali and Wali Muhammad, who fully supported the prosecution version and deposed that the appellant/accused in their presence caused blows to Mst. Najama and Mst. Karman and he was arrested within ten minutes. Despite cross-examination by learned Counsel for the appellant/accused nothing adverse to the prosecution was brought on the record. All the three eye-witnesses remained consistent on all the material aspects of the case. No doubt some minor contradictions have come on record which do creep due to passage of time but the same can be ignored, because settled principle of law is that minor contradictions or improvements in the statements of the witnesses are to be overlooked and only material contradictions are to be considered. In this regard reliance can be placed on case of Zulfiqar Ahmed and another v. The State (2011 SCMR 492).
11. The ocular evidence is corroborated by the medical evidence. The prosecution, in order to prove this piece of evidence, examined WMO, Dr. Dilshad Shaikh, who conducted post mortem exam ination of the dead bodies, has fully corroborated the version of eye-witnesses and as per her evidence deceased Mst. Karman and Mst. Najama sustained 5 injuries each on different parts of their bodies. The injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of life. Furthermore, unnatural death of both deceased the ladies has not been denied. In cross-examination stated that "It is incorrect that the substance used for both deceased was different from each other . It is incorrect to suggest that the injuries received by both deceased ladies might have been caused by different persons. Voluntarily says that it is same person." This clearly shows that the medical evidence is confirmatory with the ocular evidence.
12. The ocular evidence is also corroborated by the circumstantial evidence as the appellant/accused was arrested by the Police and PWs immediately , blood stained wooden piece and his blood stained clothes were secured by ASI, Ghulam Abbas Shar in presence of private mashirs. Furthermore, blood stained earth and clothes of deceased ladies were also recovered and all the above articles were sent to the chemical examiner and the reports have been produced by investigating officer at Exs.37 to 39, which reveal that said articles were stained with human blood. Mashir Khair Muhammad, ASI Ghulam Abbas and Investigating F Officer fully supported the prosecution case. They were also subjected to cross-examination but their credibility could not be shaken as they not only corroborated each other but also remained consistent on all material particulars of the prosecution case. Thus the prosecution has proved its case against the appellant beyond reasonable doubt. In case of Ranjha v.The State (supra) relied upon by learned Addl.P .G, the Honourable Supreme Court has held that:- "The ocular testimony of quite independent witnesses duly supported by the medical evidence, the recovery of empties from the spot, the post mortem report of the two deceased and prompt lodging of FIR without any deliberation and exaggeration as well as the attending circumstances was found truthful and confidence inspiring therefore the minor discrepancy and contr adiction pointed out in the statement of witnesses being immaterial would be of no significance."
In case of Ashiq Hussain v. The State (supra) , the Honourable Supreme Court has maintained the death sentence awarded to Ashiq Hussain, who trespassed into the house of complainant and committed the murder of one person and caused injuries to three persons. The facts of case in hand are identical to above referred case as the appellant entered the house of complainant and committed murder of two innocent ladies in a brutal manner .
13. So far as the contention of learned Counsel for the appellant/ accused that all eye-witnesses are close relatives and no independent witness was examined is concerned, suffice it to say that the complainant being inmate of the house is natural witness and PWs Hamid Ali and Wali Muhammad have adjoining houses, they reached on the cries and followed the accused and apprehended him along with ASI, hence their evidence appears to be confidence inspiring. Furthermore, no enmity or motive for false implication of the appellant was suggested to both eye-witnesses, hence mere their relationship with the deceased is not sufficient to discard their evidence. In case of Hasil Khan v. The State and anothe r reported in 2012 SCMR 1936 , the Honourable Supreme Court has observed as under: "The ocular account in this case was furnished mainly by P. W.1 Dil Murad (compl ainant) and Zareef Khan P. W.2.
The former is a brother whereas the latter is nephew of the deceased. Though both are relations but mere relationship would not make a witness unworthy of reliance if his testimony is corroborated by any independent evidence of or circumstance appearing on record."
14. Adverting to the next contention of learned counsel for the appellant/accused that the appellant is innocent and has falsely been implicated by the complainant, it is necessary to mention here that no suggestion was given to the prosecution witnesses as to why they falsely implicated the appellant in this case, secondly the plea taken by the appellant/accused that an amount of Rs.40,000/- was outstanding against the complainant and on his demand the complainant falsely implicated him does not appeal to a judicious mind that the complainant would kill his mother and daughter himself and would lodge the case against the appellant, who is also his brother-in-law (SALA).
15. Adverting to the alternate plea of learned Counsel for the appellant/accused that the prosecution has failed to prove motive, as both the eye-witness es have given contradictory evidence regarding motive, hence death sentence should not have been awarded by the learned trial Court. It is pertinent to mention here that the complainant and PW Hamid Ali in their evidence have categorically stated about the motive of the incident, hence there appears no force in the arguments of learned Counsel for the appellant.
16. As to sentence a lenient view cannot be taken as the circumstances of this case indicate that the act of appellant was gruesome and merciless as he has committed murder of Mst. Karma Khatoon aged about 70 years and Mst. Najma aged about 25 years.
17. For what has been discussed above and in the light of case-law referred above, we have come to the conclusion that the prosecution has produ ced trustworthy evidence and has succe eded to prove that the appellant has committed the murder of two innocent ladies, therefore, impugned judgment passed by learned trial Court does not warrant interference by this Court. Accordingly , instant jail appeal was dismissed, sentence of death awarded to the appellant was maintained and the Reference for confirmation was answered in AFFIRMA TIVE by our short order dated 18.10.2018. The above are the reasons of the same .